Across the country, Americans are outraged about a shooting that took place on February 26th in the city of Sanford, Florida. That evening, 17-year-old Trayvon Martin was returning to the home of his father's fiancée from a 7-11 with snacks when concealed handgun permit holder and self-appointed neighborhood watch "captain" George Zimmerman, 28, began to follow him in his SUV. Zimmerman reported Martin as a "suspicious" person to a police dispatcher and was told not to engage the youth. He ignored this advice. Exactly what happened next is not entirely clear, but when police arrived on the scene they found an unarmed Martin lying face down in the grass, dying. He had been shot in the chest by Zimmerman.
While I am heartened to see that the Florida State Attorney's office will convene a grand jury to investigate the case, there is still a long road ahead until justice is done. It certainly appears that Zimmerman killed Martin when there was no need to do so. So why did it take nearly a month, a petition with more than a half-million signatures, national media attention, and Department of Justice intervention for us to reach this point? The answer is that a law written by the National Rifle Association (NRA) has turned common law -- and common sense -- on its head by enabling vigilantes to provoke conflicts, resolve them with deadly force, and avoid ever having to set foot in a courtroom.
Shoot First, Ask Questions Later
On April 26, 2005, "Stand Your Ground" legislation was signed into law by Republican Governor Jeb Bush after being championed in the Florida state legislature by National Rifle Association lobbyist Marion Hammer. Florida's elected leaders ignored the overwhelming opposition of prosecutors and law enforcement to the law, including the National District Attorneys Association, the Florida Prosecuting Attorneys Association, multiple State Attorneys, and police chiefs from cities like Miami and St. Petersburg.
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
Justices on the Florida Supreme Court have previously highlighted the benefit of the common law duty to retreat by explaining, "Human life is precious, and deadly combat should be avoided if at all possible when imminent danger to oneself can be avoided." But it's not just the abrogation of the "duty to retreat" that makes the "Stand Your Ground" law so egregious. In conjunction with Florida statute 776.032, it can also prevent shooters from ever having to face any meaningful review of their actions by a jury. Statute 776.032, in pertinent part, reads:
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force... (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
In support of "Stand Your Ground," Marion Hammer stated, "Through time, in this country, what I like to call bleeding heart criminal coddlers want you to give a criminal an even break, so that when you're attacked, you're supposed to turn around and run, rather than standing your ground and protecting yourself and your family and your property." But others have dubbed it a "Shoot First" law.
Florida criminal defense lawyer Brian Tannenbaum summed it up well when he recently told the New York Times, "Stand Your Ground is a law that has really created a Wild West type environment in Florida ... It's a very low standard." Former Broward County prosecutor David Frankel was even more blunt. "It is an abomination," he told the South Florida Sun-Sentinel in January. "The ultimate intent might be good, but in practice, people take the opportunity to shoot first and say later they had a justification. It almost gives them a free pass to shoot."
"Justifiable homicides" in Florida have increased from 43 the year the law was enacted to 105 in 2009. The law has been invoked in at least 93 cases in Florida involving 65 deaths, a 2010 St. Petersburg Times review found. Trayvon Martin is not even the first unarmed black teenager to be killed by a shooter using the "Stand Your Ground" defense. To read more stories about concealed handgun permit holders who shot unarmed Florida residents after the law was enacted, see the following articles by the Tampa Bay Times, New York Times, South Florida Sun-Sentinel, blogger J. David Goodman and Florida defense attorney Zachary Weaver.
The bottom line is that prior to the "Stand Your Ground" law, if you were out in public in Florida and could avoid spilling blood by safely retreating from a conflict, you were required to do so by law. Now, hundreds of years of common law have been thrown out the window and the Seminole County grand jury will have to evaluate Zimmerman's actions through the lens of the NRA's new (and dangerous) statutes.
Anatomy of a Murder
So the $64,000 question is will the grand jury ultimately indict George Zimmerman or find that he acted in lawful "self-defense." Prior to the "Stand Your Ground" law, a claim of "self-defense" would not have been possible, as Zimmerman would have had a duty to retreat to avoid a conflict with Martin (something which everyone acknowledges he could have done safely). But with the law in place, the grand jury may have the legal wiggle room necessary to avoid taking action.
For starters, Zimmerman was certainly in a place "where he [had] a right to be" that evening. In many states, the NRA's "Castle Doctrine/Stand Your Ground" law is limited strictly to one's home and/or one's vehicle. However, in Florida and some other states, the law's protection extends into the public sphere. As a Florida resident driving and walking through his community, Zimmerman was certainly within the purview of the law.
Second is the question of whether Zimmerman was attacked by Martin that night. Did he "meet force with force"? Did he respond to what he "reasonably" feared as threat of "great bodily harm"? Did he act to "prevent the commission of a forcible felony"?
Zimmerman is the key witness who told police that he and Martin had a physical confrontation that night, and Martin was the aggressor. Police arriving at the scene report that Zimmerman had a bloody nose and blood on the back of his head. One 911 caller told police dispatch, "They're wrestling right in the back of my porch." Another witness saw the altercation and reported, "The guy who was on the top beating up the other guy, was the one laying in the grass, and I believe he was dead at that point." Another witness didn't see the shooting, but said, "We heard no fighting, no wrestling, no punching. We heard a boy crying. As soon as the shot went off, it stopped, which tells me it was the child crying." Still other witnesses -- including a young woman that Martin was talking to on the phone in the minutes before the shooting occurred -- have suggested Zimmerman was the aggressor. The bottom line, however, is that Zimmerman was the only direct witness to these events and Martin is not alive to tell his side of the story. Sanford Police elected to believe that Zimmerman was attacked and "reasonably" reacted to fear of "great bodily harm" despite the fact that he outweighed Martin by 20 pounds and was armed. We have no way of predicting what the Seminole County grand jury will do at this point.
Finally, at issue is whether Zimmerman was "engaged in an unlawful activity" before the shooting occurred. It is possible that Zimmerman committed one or more crimes that evening, including assault/battery and false imprisonment. If he did, he would not be protected by the Stand Your Ground law.
It is deeply unfortunate that the grand jury (and possibly, later, a jury) will have so many hurdles to face in what used to be a simple, straightforward case of murder.
License to Carry
Another disturbing aspect of this case is the fact that Zimmerman was issued a permit to carry a concealed handgun by the state of Florida in the first place. Zimmerman, of course, was arrested in 2005 for resisting arrest with violence and battery on a police officer. The case was dismissed, and Zimmerman's record expunged after he agreed to attend a pre-trial diversion program. He was also the subject of a restraining order in 2005 after his ex-fiancee accused him of physically abusing her. In addition, police have fielded complaints from members of Zimmerman's gated community about his aggressive conduct in the neighborhood.
The reality is that it is very easy even for people with criminal records to get concealed handgun permits in Florida. The state has a "Shall-Issue" system that forces law enforcement to issue permits to civilians who meet a basic set of criteria and complete a firearms safety training course (no minimum number of hours of training is required). You have to be 21 years of age. You can't be a convicted felon. You can't be the subject of a current restraining order related to domestic violence (you also can't have a past misdemeanor conviction for the crime of domestic violence). You're disqualified if you've been adjudicated as mentally incapacitated or committed to a mental institution. You're disqualified if you are a "substance abuser" (no blood alcohol or drug tests are conducted on applicants) or have been convicted of a drug crime within the previous three years. You're disqualified if you have two or more convictions for driving under the influence.
But beyond that it's wide open. You can have previous misdemeanor convictions, even for violent offenses or drug-related offenses (as long as the latter was more than three years prior). You can have severe mental health problems, as long as you never came into contact with the court system. You can have multiple previous restraining orders for domestic violence. You can have a DUI on your record. Or you can be someone like George Zimmerman, who committed a violent crime but was able to plea-bargain it down to the point where it served as no obstacle to him obtaining a permit. And permits are good for seven years -- so once you are issued one, you may not have your record checked again by the Florida Department of Agriculture and Consumer Services (the issuing body) until you renew the permit.
A few years ago, the South Florida Sun-Sentinel conducted an investigation that revealed that Florida concealed handgun permit holders included more than 1,400 people who pleaded guilty or no contest to felonies, 216 people with outstanding warrants, 128 people with active domestic violence injunctions against them, and six registered sex offenders. In response, the Florida legislature and Governor Bush enacted a law banning the public and press from accessing this information in the future.
Florida also allows out-of-state residents to obtain their concealed handgun permits through the mail. There have been numerous complaints about dangerous individuals -- unable to get permits in their home states -- obtaining them from Florida. If their home state has a reciprocity agreement with Florida recognizing each other's permits, they can then carry in their own communities. This has led to mayhem and murder in some cases.
"There is no justice in this."
Trayvon's father, Tracy Martin, recently told reporters of his son's murder: "There is no justice in this." And even if George Zimmerman is ultimately convicted, Tracy Martin will still be right, because his son will still be lost to him as a result of two ill-advised and reckless changes to Florida law.
Meanwhile, the NRA continues its push to arm civilians by liberalizing the use of lethal force. Four states (Alaska, Arizona, Vermont and Wyoming) now allow citizens to carry loaded guns in public with no permitting, screening or training (as Jared Loughner did in Tucson). 38 others have "Shall-Issue" permitting systems, including Florida. Meanwhile, at least 27 states have adopted some version of the NRA's "Castle Doctrine/Stand Your Ground" law (at least 16 of them protect the use of lethal force in public places).
Until the NRA's lethal agenda is countered by Americans of conscience, the inevitability of future Trayvon Martins will hang over America like a funeral shroud.
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